Texas Attorney General Ken Paxton is suing the Centers for Medicare and Medicaid Services over a new rule nursing home rule that could have serious impacts in Kansas and the rest of the country as well.
According to a release from Paxton’s office, the new “final rule” would force long-term care facilities in Texas to hire more than 10,000 new staff — with highly specific qualifications — and according to Paxton, more than are available in the labor market.
“Facilities in particularly challenging areas such as rural locations are at risk of shutting down due to the well-known national shortage of qualified personnel in the industry with an outsized effect on certain regions,” according to the release.
The lawsuit alleges that the rule clearly violates the Major Questions Doctrine, which forbids government agencies run by unelected bureaucrats from passing regulations on significant topics that Congress more appropriately handles. Congress has repeatedly refused to change nursing home staffing requirements. Further, the CMS regulation is arbitrary and capricious, violating the Administrative Procedure Act. Attorney General Paxton asked the court to vacate the rule and enjoin the Biden Administration from enforcing it.
“This power grab by Biden’s health bureaucrats could put much-needed care facilities out of business in some of the most underserved areas of our state,” Paxton said. “We are taking the federal government to court over this rule that could worsen rural care shortages by shutting down facilities due to new hiring quotas that are impossible to fill.”
Nursing home impact
According to the lawsuit, the “Final Rule” imposes new minimum nurse staffing requirements on nursing homes (also known as “long-term care facilities”) as a condition of their participation in Medicare and Medicaid. Because 97% of all nursing homes participate in these programs, the Final Rule will impact nearly every nursing home in America.
Paxton says in the filing that the new requirements depart sharply from both black letter law and decades of precedent. Historically, Congress has required that (1) a nursing home “must use the registered professional nurse for at least 8 consecutive hours a day, 7 days a week”; and (2) a nursing home “must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents.”
“The new requirements remove the historic flexibility of a nursing home to determine what is ‘sufficient to meet the nursing needs of its residents,'” the lawsuit reads “Instead, the CMS Final Rule now imposes a one-size-fits-all rule that directly contravenes Congress’s stated flexible directive with rigid, inflexible requirements.”
The new rule triples the required onsite hours of an RN from 8 hours per day, every day of the week, to 24 hours per day and changes flexible ‘sufficiency’ standard to a set of three quantitative requirements: (1) total nurse staffing of at least 3.48 hours per resident day (“HRPD”); (2) RN staffing of at least 0.55 HPRD; and (3) nurse aide (“NA”) staffing of at least 2.45 HPRD. 89 Fed. Reg. at 40877. These rules apply regardless of the care facility’s actual staffing needs.
“CMS — perhaps recognizing that its sweeping Final Rule departs from both Congress’s directive and decades of precedent — claims that its power to promulgate this rule derives from provisions of the Medicare and Medicaid Acts that enable the agency to regulate in the interest of nursing home residents’ health and safety,” Paxton wrote. “But CMS lacks the authority to override Congress’s stated policy as enacted in the statute that empowers CMS to regulate in the first place. Moreover, imposing $4.3 billion dollars of cost per year on nursing homes across the country without statutory authorization violates the Major Questions Doctrine.
The major questions doctrine is a principle of statutory interpretation applied in United States administrative law cases which states that courts will presume that Congress does not delegate to executive agencies issues of major political or economic significance.
“CMS’s Final Rule recognizes that the new requirements will force ‘more than 79 percent of nursing facilities nationwide’ to hire more staff,” the lawsuit alleges “At the same time, CMS agreed that most nursing homes are already adequately staffed. CMS has not articulated why minimum staff requirements are needed, nor has CMS taken into account the massive nationwide nursing shortage that will make compliance for many long-term care facilities a practical impossibility.”
In Texas alone, Paxton argues, this would impose a cost of at least a half-billion dollars per year, driving up costs or driving skilled nursing facilities out of business when unable to comply with the rule.
Paxton is asking the courts to enjoin enforcement of and vacate the rule entirely.